April 19, 1996
While socialism is passing into the history books as a once-noble ideal that degenerated into an instrument of tyranny in most parts of the world, it continues to bedevil the Indian polity. Even though we have jettisoned a good deal of the licence-permit-quota regime which in India is the visible symbol of socialism, the word continues to disfigure the Indian Constitution and is making a mockery of Indian democracy.
In India a political party cannot register itself with the Election Commission of India unless it swears allegiance to socialism along with secularism and democracy. In other words, as the law relating to elections stands today only a socialist party can participate in the Indian political process.
When and how did this happen ?
In 1976, the preamble to the Constitution of India was amended. The words "Sovereign Democratic Republic" were amended to read "Sovereign Socialist Secular Democratic Republic". The amendment was adopted during the last days of the brief dictatorship imposed by Mrs. Indira Gandhi when she was the Prime Minister of the Government of India. She of course called it an ‘Emergency’ when most leaders of parties in the opposition were put in prison (without trial) and civil liberties suspended.
Based on the amended preamble, Parliament passed in 1989 an amendment to the Representation of the People Act which introduced the concept of registration of political parties for allotment of symbols and the entitlement to other facilities such as free copies of electoral rolls etc. A new section was added to the Representation of the People Act – Section 29 (A).
This new section stipulates among other things that a political party seeking registration should swear allegiance to the Constitution of India in general and to the principles of socialism in particular. Every party candidate filing his nomination paper has also to swear such an oath of allegiance to socialism. Strangely an independent candidate (i.e., a candidate who does not belong to any party) has only to swear allegiance to the Constitution of India without having to spell it out in terms of his or her allegiance to socialism.
The Swatantra Party, a liberal democratic party was founded in 1959 long before the enactment of Section 29 (A). The Party was founded by Mr. Minoo Masani a patron of the Liberal International and Mr. C. Rajagopalachari a close associate of Mahatma Gandhi.
The Swatantra Party split in 1974. One group to which this writer and Mr. Masani belonged decided to continue the Swatantra Party in the State of Maharashtra. And it was this party that asked for registration under the new law. The other group in the split joined another party. In its application the Swatantra Party explained that while the party was prepared to swear allegiance to the Constitution and to the principles of secularism and democracy it was not prepared to swear allegiance to socialism for the simple reason that the Swatantra Party was sworn to oppose socialism and statism. The reply from the Election Commission was truly bureaucratic : ‘Please complete the registration as stipulated by Section 29 (A)’.
Denied registration and in the context of the Maharashtra State assembly elections we sought justice from the Bombay High Court by filing a writ petition on 15th December, 1994 three months before the state assembly elections.
It took the High Court in Bombay 18 months and 20 days to take up the matter and that too only to set a date for the hearing. On April 4, 1996, a Division Bench consisting of the Chief Justice of the Bombay High Court and another judge ordered a hearing arguments in the first week of August (a clear 3 months after yet another election, this time to the Lok Sabha or the House of the People (India’s lower house of Parliament ). Thus for the second time, the Swatantra Party was denied its right to participate in the democratic process because of its refusal to give up its liberal position and to falsely declare its adherence to socialism.
In our writ petition we clearly stated that the "Swatantra Party does not wish to circumvent by prevarication and falsehood" the provision in the election law which compels political parties to swear loyalty to socialism. The petition pointed that we were determined not to follow the example of "extreme revolutionary parties" who for the purpose of securing registration falsely swore that "they bear allegiance to democracy" or of communal (religion based) parties who falsely swore "allegiance to secularism".
Our petition pointed out that Section 29 (A) did not provide "for any verification of the truth" of a party’s assertion that it was socialist, secular or democratic, "nor is there any instance of registration being denied to or withdrawn from any party on the basis of proven falsehood". In other words the Swatantra Party could easily have sworn loyalty to socialism merely to obtain registration and then gone on to attack this ideology in its manifesto. "But" said our petition, the Swatantra Party had "no wish to resort to such unconscionable procedure".
The petition clarified that its "grievance is not against the amendment to the Preamble to the Constitution incorporating therein a reference to socialism. The Constitution contains many dispositions not all of which need to be uniformly acceptable to any given individual or association of individuals. What is essential is that a citizen must have the right and the possibility at par with any other citizen to act and to canvass by constitutional means, for changing the dispositions of the Constitution in accordance with his inclinations however unreasonable they may look to others at a given point of time. Section 29 (A) of the Act prevents committed and sincere non-socialists from agitating as an organised force in favour of getting the Constitution modified in their favour by entering the Legislature and influencing the persuasions of the other members of parliament".
The petition pointed out that the "term socialism has been applied to a large spectrum of theories over the last two centuries. Saint Simonism based on compassion for the less fortunate and suffering fraternity; Owenism as a serious attempt at organisation of the weaker sections into economiucally viable units; Fabianism with its mighty intellectual prestige provided by George Bernard Shaw, Sidney and Beatrice Webb; Guild Socialism advocated by G.D.H. Cole; Welfarism providing a misplaced justification for equal distribution for wealth; the European type of liberal, democratic, welfarist socialism; the Keynesian model entrusting the responsibility of ensuring fuller levels of employment and investment; third world states resorting to planning as an instrument of accelerating growth and equality; the Soviet type of bolshevik scientific socialism based on dialectical materialism, historical determinism, class conmflict, the theory of surplus value aimed at industrialisation nationalisation, planning and dictatorship of proletariat; and last but not the least, the Maoist, Guevarist, Castroist, Royist etc. provide only part of the spectrum of ideas that have been identified with the word socialism….Other schools of socialist thought are identified by the appendage of qualifications like democratic, christian, liberal etc."
The petition went to refer to the dictionary meaning of the word "The Concise Oxford Dictionary defines the word socialism as political and economic theory of social organisation which advocates that the community as a whole should own and control the means of production, distribution and exchange; a policy or practice base on this theory. It is quite clear that the word socialism in its unmixed form means much more and much less than a system based on justice, liberty, equality and fraternity than is envisaged in the Constitution of India. It, therefore, follows that the oath of allegiance to both the Constitution of India and to socialism are in good part mutually contradictory."
Drawing an essential distinction between socialism and liberalism, the petition observed: "The essential part of all brands of socialism is the notion of the paramountcy of society over the individual; of social decision-making over individual behaviour. This concept of paramountcy stands in ruins today. It is now accepted quasi-universally that mankind has not, till date, invented anything better than the market mechanism for arriving at the best decisions for the society as a whole"
The petition, as we mentioned earlier will be heard in the first week of August. But it will not erase the fact that a liberal democratic party has been denied its right for the second time to participate in the elections because of its refusal to accept socialism, as its creed.
December 15, 1994
BY L.R. Sampat and S.V. Raju
(placed on the internet in January, 2000)
In the High Court of Judicature at Bombay
Ordinary Orignial & Constitutional Jurisdiction
Writ Petition No. 2602 of 1994
The Hon’ble the Chief Justice and the other Hon’ble Judges of the High Court of Judicature at Bombay.
The Humble Petition of the petitioners above named:
MOST RESPECTFULLY SHOWETH.
- In most countries of the world the socialist are collapsing under the weight of their own non-viability. Even the Government of India has admitted the errors of its socialist past and professes to be pursuing the path of market oriented economies. It makes little sense in this era to deny non-socialists the possibility of organising themselves as a party in order to be able to contest political elections.
- The Position of the petitioners is thus diametrically opposed to the basic minimum of the world-view, economics, sociology and politics that is associated with the term socialist. The petitioners are, therefore, approaching this Hon’ble Court to seek relief from being forced to change his convictions or to have recourse to deceit in order to be able to exercise the basic democratic human rights embodied in the fundamental rights of being able to form a party with a view to contesting elections.
- Sections 29 (A) (5) of the Act suffers from the vice of vagueness in that it compels an association to swear allegiance to the principle of socialism without any attempt to define or even indicate the meaning of the term socialism. The Section is, therefore, illegal and unconstitutional being arbitrary and, therefore, violative of article 14 of the Constitution of India.
- Sub-Section 5 of Section 29(A) of the Act, in as much as it compels an association or a political party to bear allegiance to the principle of socialism as a precondition to its applying for registration as political party is ultra vires Article 19 (1) (a) and (c) of the Constitution of India. The said Section has the effect of hindering and inhibiting the formation of a political party with full advantages of registration and its functioning in the political arena of the country unless it conforms to a certain point of view. The said provision is not saved by sub-clauses 2 and 4 of article 19 in that it has no bearing on the sovereignty and integrity of India or public order.
- Section 29(A) makes a hostile and invidious discrimination between political parties which bear allegiance to the principles of socialism and those that do not. It is submitted that qua the purpose of registration of political parties i.e. for the purpose of contesting elections and conferring certain rights and privileges and imposing certain liabilities in relation thereto, there is no intelligible differential between the two kinds of political parties. It is further submitted that qua the election law the differences in beliefs or political philosophies which parties may hold can not become a ground for discriminating between them so as to confer certain privileges only on parties holding one set of beliefs as long as the beliefs do not contradict or adversely affect the sovereignity and integrity of India or public order. Such a difference, as is sought to be emphasized by section 29(A) (5) is without any basis and has no nexus with the purpose of the Act which is avowedly an Act which provides “for the conduct of elections to the Houses of Parliament and to the House or Houses of Legislature of each State, the qualifications and disqualifications for membership of those Houses, the corrupt practices and other offences at or in connection with such elections and the decisions of doubts and disputes arising out of or in connection with such elections”.
- The petitioners further submit that qua the aforesaid objective of the Act, there is no valid difference in individuals contesting elections and parties doing so. There is thus an arbitrariness and a hostile discrimination writ large in the scheme of the Act in that it enables individual candidates contesting as independents to contest elections even though they do not bear allegiance to the principles of socialism but prevents an association of such individuals from doing so as a registered political party unless it bears allegiance to the said principles. The petitioners submit that this constitutes an unreasonable and unjustified denial of the advantages of registration only because as an association the said individuals are non-socialists.
- The petitioners submit that the restriction which Section 29 (A) imposes on political parties nullifies the very essential and basic feature of the Constitution of India namely democracy and the fundamental right of freedom of association and of thoughts and expression on citizens for the purpose of preserving the democracy.
- It is submitted that the right to amend the Constitution so as not to change its basic structure having been upheld and socialism not being part of the basic structure of the Constitution, the restriction imposed by Section 29(A) has the effected of virtually denying the right to attempt an amendment of the political philosophy of the Government of the day reflected in the Constitution of India. The petitioners therefore approach this Hon’ble High Court under Article 226 of the Constitution of India for appropriate writ, direction and/ or order in nature of writ for the reliefs prayed herein. The petitioners are entitled to all the reliefs prayed in the petition and this Hon’ble High Court has jurisdiction to try and entertain this petition.
- The petitioners have not filed any other petition either in this Hon’ble Court or in the Supreme Court of India in this matter.
- The petitioners state that the Petitioners have their offices at Bombay. The Respondents have their offices at Bombay. The cause of action arose at Bombay, and therefore, the Hon’ble High Court therefore has jurisdiction to try this Petition on its Original side.
- The petitioners state that their rights are protected under the Constitution of India and the Petitioners are entitled for the reliefs prayed herein.
- The Petitioners crave leave to add to, to alter, to amend, to delete, to vary any of the grounds urged hereinabove if necessity may demand or occasion may require.
- The Petitioners, therefore, pray that this Hon’ble court be pleased to:-
- issue a writ of Mandamus, or a writ in the nature of mandamus or any other appropriate writ order or direction and thereby strike down Sub-Section 5 of Section 29(A) of the Representation of the People Act 1951 as being ultra vires the Constitution of India to the extent it requires the memorandum and rules and regulations of the association or body desiring registration to contain a specific provision that such an association and body shall bear true faith and allegiance to the principle of socialism;
- direct,thereupon, the Respondent No.3 to register the Petitioner No.1 as a political party under the Representation of the People Act, 1951 forthwith with law;
- grant interim reliefs directing the Respondent No.3 to register the Petitioner No.1 as a political party under the Representation of the People act 1951 in accordance with law;
- grant any other relief which this Hon’ble Court deems fit in the facts and circumstances of the case.
- To award costs of the petition.
And for this Act of Kindness, The Petitioners as in Duty Bound Shall Pray.
Dated : 15th day of December, 1994 Petitioners
1. The Petitioner No.1 is a political party which came into existence at a Preparatory Convention held at Bombay on 1st and 2nd August 1959. A copy of the ‘Statement of principles’ adopted at the said Convention as also a copy of ‘Statement of Policy’ adopted at the National Convention of the party at Patna on March 19/20, 1960 are jointly annexed herewith and marked asAnnex ‘A’ to this petition. The petitioner seeks registration as a political party under the Representation of the People Act, hereinafter called the Act for the sake of brevity. The petitioner No. 2 is a citizen of India, age 61 years, and is the Editor of a quarterly journal ‘Freedom First’. He fully subscribes the views of the Petitioner No. 1 Party and is a member thereof. The petitioners approach this Hon’ble High Court challenging the provisions of Section 29 (A) of the Act as being violative of fundamental rights and, consequently, ultra vires the Constitution of India.
2. The Respondent No.1 is the Union of India and the Respondent Nos.2 and 3 are the responsible officers of Government of India in relation to the Elections to the Parliament and Legislative Assemblies and Legislative Councils throughout the Country. The petitioners are seeking reliefs against all the Respondents and hence they are necessary parties to this petition.
3. The petitioners state that, though the Preamble to the Constitution of the India as enacted in 1949, the people resolved:
“to constitute India into a Sovereign Democratic Republic”.
The 42nd amendment to the Constitution of India, imposed in 1976 upon the ideals of the people of an earlier generation by introducing three new tenets. The relevant part of the Preamble to the Constitution was consequently changed to read:
“.. to constitute India into a Sovereign Socialist Secular Democratic Republic…”
4. The Petitioners state that, the amendment to the Preamble of the Constitution was subsequently reflected by the introduction in 1988 of a new Section 29(A) in the Representation of the People Act 1951.
9. The Petitioners state that, further, on June 28 ,1994 the petitioner No.1 wrote to the Election Commission wishing to know if his application for registration will be accepted by the Election Commission if he rejected the socialism part of Sub-Section 5 of Section 29(A) of the Act. A copy of letter dt.28.6.1994 is annexed herewith and marked as Annex ‘E’ to this petition.
10. The Respondent Election Commission replied to this by it’s letter dated 14.9.94 reiterating the provision i.e. Section 29(A)(5) of the Act and demanding compliance therewith. On this occasion also, as on the previous occasion, the letter was accompanied by a copy of Sec.29(A) of the Representation of the People Act. A copy of letter dated 14.9.94 is annexed herewith and marked as Annex ‘F’.
11. The stipulations of Section 29(A) create problems of conscience and principles which the petitioner No.1 party does not wish to circumvent by prevarication and falsehood as has been done by other parties in the country. For example, the extreme leftist revolutionary parties have apparently constituted themselves by a memorandum which contains a provision to the effect that they bear allegiance to the principle of democracy; crassly communal parties have sworn allegiance to secularism and the ruling party despite its declared objective of liberalization and globalization has pledged or at any rate continues to pledge its allegiance to the principle of socialism. Section 29(A) poses no problem that can not be overcome by recourse to pliable conscience. There is no provision for any verification of the truth of the memoranda or regulations nor is there any instance of registration being denied to or withdrawn from any party on the basis of proven falsehood of the provisions in the memorandum of association of any party. The petitioner No. 1 has no wish to resort to such unconscionable procedure followed quasi-universally.
12. The petitioner No. 1 has no difficulty whatsoever in confirming its allegiance to the principles of democracy and secularism as also to uphold the territorial integrity of the republic. It encounters insurmountable difficulty in declaring allegiance to the principle of socialism. The term socialism has not been defined in the Constitution of India or in the said Act. The requirement to declared allegiance to a tenet so shrouded in vagueness can serve no possible purpose. If the provision contained in the Constitution represent, in the view of the authors of the stipulation, the essential content of socialism, the specific requirement of the section 29 (A) is unnecessary since the oath of allegiance to the Constitution as by law established would more than cover the requirement.
On the other hand, if the disposition of the Constitution of India are entirely socialistic but are a little less or a little more, there would arise a contradiction between the declaration of allegiance to the Constitution and that to the principle of socialism.